Kay Everett Memorial Lecture School of Oriental and African Studies

20 February 2019

Holding the Balance National Security Civil Liberties and the Role of the Investigatory Powers

Tribunal

Sir Rabinder Singh1

1 It is a genuine pleasure to give this yearrsquos Kay Everett Memorial Lecture Kay

Everett was a truly remarkable person I doubt if there are many others who

would have the courage to do what she did Midway through her career with a

ldquomagic circlerdquo firm of solicitors she decided to embark on an LLM here at

SOAS on the subject of human rights law She then devoted her life and career

to helping others by making use of that knowledge and experience Her life was

sadly cut short when she was only 43 but her memory lives on and inspires

others

2 The theme of my lecture this evening will be the work of the Investigatory

Powers Tribunal (or ldquoIPTrdquo) I was appointed President of that Tribunal in

September last year I hope you will find it interesting to hear about the history

1 Lord Justice of Appeal and President of the Investigatory Powers Tribunal I would like to thank Jonathan Glasson QC for his comments on an earlier draft of this lecture

Page 1

and work of this Tribunal It is a tribunal whose work is perhaps not as well

known as it should be It is also a relatively rare kind of tribunal in that its

jurisdiction extends to all four constituent nations of the United Kingdom

3 The activities over which the IPT has jurisdiction include surveillance

interception of communications and the use of covert human intelligence

sources (ldquoCHISrdquo as they are known in the jargon or ldquoinformantsrdquo as they are

known more colloquially) The public authorities which are within its remit

include the police local authorities and central government departments

Perhaps most significantly its jurisdiction includes complaints made by

members of the public against one of the security and intelligence agencies

4 The IPT has been described by one commentator (Ian Cobain) as the ldquomost

secretive courtrdquo in this country2 On the other hand the very fact that the IPT

exists to review the legality of the actions of bodies which necessarily have to

operate in secret may itself be a tribute to the rule of law in this country

5 As one academic commentator Paul F Scott has put it in his recent study The

National Security Constitution3

ldquohellip Where the pursuit of national security ends reaches further into the constitutional landscape than was previously the case that fact is often in large part the consequence of there having been formalised in law (and by extension in constitutional law) processes and actions which would previously not have taken place or would have happened without legal authority hellip What is presented here as the emergence (or acceleration) of a national security constitution is in many ways the consequence of developments which are themselves from the point of view of the rule of law ndash or if that is too diffuse a value the bare commitment to legality ndash unambiguously positiverdquo

2 The History Thieves (2016 Portobello Books) p287 3 (2018 Hart) p4

Page 2

6 The IPT was created by the Regulation of Investigatory Powers Act 2000

(ldquoRIPArdquo) It succeeded several earlier bodies including the Interception of

Communications Act Tribunal which had been created in 1985

7 The IPTrsquos first President was a Court of Appeal judge Lord Justice Mummery

who served from its inception in 2000 until his retirement in 2013 Its second

President was a High Court judge Mr Justice (later Sir Michael) Burton who

served from 2013 until 2018 RIPA also makes provision for there to be a Vice-

President of the IPT a post which is currently vacant but which we hope will

be filled in the near future In addition there are other members Those other

members currently include two serving High Court Judges from England and

Wales a retired High Court Judge from Northern Ireland and senior

practitioners from England and Wales and Scotland

Some history

8 The history of spying long predates modern technology such as telephones and

computers The leading historian of intelligence matters Christopher Andrew

suggests that the history of espionage can be traced back to Moses in the Old

Testament In his recent magisterial history of intelligence he says that ldquoThe

first major figure in world literature to emphasize the importance of good

intelligence was Godrdquo After Moses had led his people out of captivity in Egypt

Page 3

in search of the Promised Land he was told by God to send spies to the land of

Canaan ldquowhich I give unto the children of Israelrdquo4

9 In England by Elizabethan times if not before we can already see the

phenomena of interception of communications and code-breakers Francis

Walsingham who was Queen Elizabeth Irsquos principal Secretary of State between

1573 and 1590 was particularly keen to keep a careful eye on what was being

said in letters written by Mary Queen of Scots Indeed it was a letter which

had been intercepted and which appeared to endorse a suggestion that Queen

Elizabeth should be assassinated that led to Maryrsquos death warrant According

to Professor Andrew it was in 1592 in Shakespearersquos play Richard III that the

first use of the word ldquointelligencerdquo is to be found in its modern sense of ldquosecret

informationrdquo5

10 During the brief time when England was a republic in the Commonwealth era

after the Civil War a Deciphering Branch was created It was to last from 1653

until Victorian times

11 The General Post Office was created in 1660 after the restoration of Charles II

It seems clear that from its inception postal communications were liable to be

intercepted by agents of the state This practice was recognised for the first time

in an Act of 1711 in the reign of Queen Anne

12 In 1844 it was discovered after a scandal concerning the interception of the post

of the Italian exile Giuseppe Mazzini that this practice was not uncommon

There was outrage in the House of Commons that something so un-English

4 The Secret World A history of intelligence (2018 Allen Lane) p13 5 Ibid p187

Page 4

could have been happening in this country This led to the abolition of the

Deciphering Branch and the Secret Office of the Post Office According to

Christopher Andrew this had the consequence that at the outbreak of the First

World War Great Britain did not have a code-breaking facility It quickly found

that it needed one6

13 In the meantime in 1909 there was established the Secret Service Bureau Of

course its existence was not announced or even acknowledged for many

decades At first it consisted of just two officers one responsible for domestic

matters and the other for foreign intelligence The original officers Sir Vernon

Kell and Sir Mansfield Cumming became respectively the first heads of the

Security Service (MI5) and the Secret Intelligence Service (MI6) It is in honour

of Cumming that to this day the Chief of MI6 is known as C ndash not M as in the

James Bond stories7

14 The third agency which now forms part of the UK intelligence community is

the Government Communications Headquarters (GCHQ) whose origins lie in

the Government Code and Cypher School created after the First World War

and which famously worked at Bletchley Park during the Second World War

although this was kept secret for many decades after the war

15 What is important for present purposes is that the security and intelligence

agencies are subject to the law of the land including the requirements of RIPA

and the Human Rights Act 1998 (ldquoHRArdquo) By putting complaints under those

Acts against one of the agencies into the IPT Parliament has sought to ensure

6 Ibid pp380-383 See also David Omand Securing the State (2010 Hurst amp Co) p277 7 Andrew op cit p483

Page 5

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

and work of this Tribunal It is a tribunal whose work is perhaps not as well

known as it should be It is also a relatively rare kind of tribunal in that its

jurisdiction extends to all four constituent nations of the United Kingdom

3 The activities over which the IPT has jurisdiction include surveillance

interception of communications and the use of covert human intelligence

sources (ldquoCHISrdquo as they are known in the jargon or ldquoinformantsrdquo as they are

known more colloquially) The public authorities which are within its remit

include the police local authorities and central government departments

Perhaps most significantly its jurisdiction includes complaints made by

members of the public against one of the security and intelligence agencies

4 The IPT has been described by one commentator (Ian Cobain) as the ldquomost

secretive courtrdquo in this country2 On the other hand the very fact that the IPT

exists to review the legality of the actions of bodies which necessarily have to

operate in secret may itself be a tribute to the rule of law in this country

5 As one academic commentator Paul F Scott has put it in his recent study The

National Security Constitution3

ldquohellip Where the pursuit of national security ends reaches further into the constitutional landscape than was previously the case that fact is often in large part the consequence of there having been formalised in law (and by extension in constitutional law) processes and actions which would previously not have taken place or would have happened without legal authority hellip What is presented here as the emergence (or acceleration) of a national security constitution is in many ways the consequence of developments which are themselves from the point of view of the rule of law ndash or if that is too diffuse a value the bare commitment to legality ndash unambiguously positiverdquo

2 The History Thieves (2016 Portobello Books) p287 3 (2018 Hart) p4

Page 2

6 The IPT was created by the Regulation of Investigatory Powers Act 2000

(ldquoRIPArdquo) It succeeded several earlier bodies including the Interception of

Communications Act Tribunal which had been created in 1985

7 The IPTrsquos first President was a Court of Appeal judge Lord Justice Mummery

who served from its inception in 2000 until his retirement in 2013 Its second

President was a High Court judge Mr Justice (later Sir Michael) Burton who

served from 2013 until 2018 RIPA also makes provision for there to be a Vice-

President of the IPT a post which is currently vacant but which we hope will

be filled in the near future In addition there are other members Those other

members currently include two serving High Court Judges from England and

Wales a retired High Court Judge from Northern Ireland and senior

practitioners from England and Wales and Scotland

Some history

8 The history of spying long predates modern technology such as telephones and

computers The leading historian of intelligence matters Christopher Andrew

suggests that the history of espionage can be traced back to Moses in the Old

Testament In his recent magisterial history of intelligence he says that ldquoThe

first major figure in world literature to emphasize the importance of good

intelligence was Godrdquo After Moses had led his people out of captivity in Egypt

Page 3

in search of the Promised Land he was told by God to send spies to the land of

Canaan ldquowhich I give unto the children of Israelrdquo4

9 In England by Elizabethan times if not before we can already see the

phenomena of interception of communications and code-breakers Francis

Walsingham who was Queen Elizabeth Irsquos principal Secretary of State between

1573 and 1590 was particularly keen to keep a careful eye on what was being

said in letters written by Mary Queen of Scots Indeed it was a letter which

had been intercepted and which appeared to endorse a suggestion that Queen

Elizabeth should be assassinated that led to Maryrsquos death warrant According

to Professor Andrew it was in 1592 in Shakespearersquos play Richard III that the

first use of the word ldquointelligencerdquo is to be found in its modern sense of ldquosecret

informationrdquo5

10 During the brief time when England was a republic in the Commonwealth era

after the Civil War a Deciphering Branch was created It was to last from 1653

until Victorian times

11 The General Post Office was created in 1660 after the restoration of Charles II

It seems clear that from its inception postal communications were liable to be

intercepted by agents of the state This practice was recognised for the first time

in an Act of 1711 in the reign of Queen Anne

12 In 1844 it was discovered after a scandal concerning the interception of the post

of the Italian exile Giuseppe Mazzini that this practice was not uncommon

There was outrage in the House of Commons that something so un-English

4 The Secret World A history of intelligence (2018 Allen Lane) p13 5 Ibid p187

Page 4

could have been happening in this country This led to the abolition of the

Deciphering Branch and the Secret Office of the Post Office According to

Christopher Andrew this had the consequence that at the outbreak of the First

World War Great Britain did not have a code-breaking facility It quickly found

that it needed one6

13 In the meantime in 1909 there was established the Secret Service Bureau Of

course its existence was not announced or even acknowledged for many

decades At first it consisted of just two officers one responsible for domestic

matters and the other for foreign intelligence The original officers Sir Vernon

Kell and Sir Mansfield Cumming became respectively the first heads of the

Security Service (MI5) and the Secret Intelligence Service (MI6) It is in honour

of Cumming that to this day the Chief of MI6 is known as C ndash not M as in the

James Bond stories7

14 The third agency which now forms part of the UK intelligence community is

the Government Communications Headquarters (GCHQ) whose origins lie in

the Government Code and Cypher School created after the First World War

and which famously worked at Bletchley Park during the Second World War

although this was kept secret for many decades after the war

15 What is important for present purposes is that the security and intelligence

agencies are subject to the law of the land including the requirements of RIPA

and the Human Rights Act 1998 (ldquoHRArdquo) By putting complaints under those

Acts against one of the agencies into the IPT Parliament has sought to ensure

6 Ibid pp380-383 See also David Omand Securing the State (2010 Hurst amp Co) p277 7 Andrew op cit p483

Page 5

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

6 The IPT was created by the Regulation of Investigatory Powers Act 2000

(ldquoRIPArdquo) It succeeded several earlier bodies including the Interception of

Communications Act Tribunal which had been created in 1985

7 The IPTrsquos first President was a Court of Appeal judge Lord Justice Mummery

who served from its inception in 2000 until his retirement in 2013 Its second

President was a High Court judge Mr Justice (later Sir Michael) Burton who

served from 2013 until 2018 RIPA also makes provision for there to be a Vice-

President of the IPT a post which is currently vacant but which we hope will

be filled in the near future In addition there are other members Those other

members currently include two serving High Court Judges from England and

Wales a retired High Court Judge from Northern Ireland and senior

practitioners from England and Wales and Scotland

Some history

8 The history of spying long predates modern technology such as telephones and

computers The leading historian of intelligence matters Christopher Andrew

suggests that the history of espionage can be traced back to Moses in the Old

Testament In his recent magisterial history of intelligence he says that ldquoThe

first major figure in world literature to emphasize the importance of good

intelligence was Godrdquo After Moses had led his people out of captivity in Egypt

Page 3

in search of the Promised Land he was told by God to send spies to the land of

Canaan ldquowhich I give unto the children of Israelrdquo4

9 In England by Elizabethan times if not before we can already see the

phenomena of interception of communications and code-breakers Francis

Walsingham who was Queen Elizabeth Irsquos principal Secretary of State between

1573 and 1590 was particularly keen to keep a careful eye on what was being

said in letters written by Mary Queen of Scots Indeed it was a letter which

had been intercepted and which appeared to endorse a suggestion that Queen

Elizabeth should be assassinated that led to Maryrsquos death warrant According

to Professor Andrew it was in 1592 in Shakespearersquos play Richard III that the

first use of the word ldquointelligencerdquo is to be found in its modern sense of ldquosecret

informationrdquo5

10 During the brief time when England was a republic in the Commonwealth era

after the Civil War a Deciphering Branch was created It was to last from 1653

until Victorian times

11 The General Post Office was created in 1660 after the restoration of Charles II

It seems clear that from its inception postal communications were liable to be

intercepted by agents of the state This practice was recognised for the first time

in an Act of 1711 in the reign of Queen Anne

12 In 1844 it was discovered after a scandal concerning the interception of the post

of the Italian exile Giuseppe Mazzini that this practice was not uncommon

There was outrage in the House of Commons that something so un-English

4 The Secret World A history of intelligence (2018 Allen Lane) p13 5 Ibid p187

Page 4

could have been happening in this country This led to the abolition of the

Deciphering Branch and the Secret Office of the Post Office According to

Christopher Andrew this had the consequence that at the outbreak of the First

World War Great Britain did not have a code-breaking facility It quickly found

that it needed one6

13 In the meantime in 1909 there was established the Secret Service Bureau Of

course its existence was not announced or even acknowledged for many

decades At first it consisted of just two officers one responsible for domestic

matters and the other for foreign intelligence The original officers Sir Vernon

Kell and Sir Mansfield Cumming became respectively the first heads of the

Security Service (MI5) and the Secret Intelligence Service (MI6) It is in honour

of Cumming that to this day the Chief of MI6 is known as C ndash not M as in the

James Bond stories7

14 The third agency which now forms part of the UK intelligence community is

the Government Communications Headquarters (GCHQ) whose origins lie in

the Government Code and Cypher School created after the First World War

and which famously worked at Bletchley Park during the Second World War

although this was kept secret for many decades after the war

15 What is important for present purposes is that the security and intelligence

agencies are subject to the law of the land including the requirements of RIPA

and the Human Rights Act 1998 (ldquoHRArdquo) By putting complaints under those

Acts against one of the agencies into the IPT Parliament has sought to ensure

6 Ibid pp380-383 See also David Omand Securing the State (2010 Hurst amp Co) p277 7 Andrew op cit p483

Page 5

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

in search of the Promised Land he was told by God to send spies to the land of

Canaan ldquowhich I give unto the children of Israelrdquo4

9 In England by Elizabethan times if not before we can already see the

phenomena of interception of communications and code-breakers Francis

Walsingham who was Queen Elizabeth Irsquos principal Secretary of State between

1573 and 1590 was particularly keen to keep a careful eye on what was being

said in letters written by Mary Queen of Scots Indeed it was a letter which

had been intercepted and which appeared to endorse a suggestion that Queen

Elizabeth should be assassinated that led to Maryrsquos death warrant According

to Professor Andrew it was in 1592 in Shakespearersquos play Richard III that the

first use of the word ldquointelligencerdquo is to be found in its modern sense of ldquosecret

informationrdquo5

10 During the brief time when England was a republic in the Commonwealth era

after the Civil War a Deciphering Branch was created It was to last from 1653

until Victorian times

11 The General Post Office was created in 1660 after the restoration of Charles II

It seems clear that from its inception postal communications were liable to be

intercepted by agents of the state This practice was recognised for the first time

in an Act of 1711 in the reign of Queen Anne

12 In 1844 it was discovered after a scandal concerning the interception of the post

of the Italian exile Giuseppe Mazzini that this practice was not uncommon

There was outrage in the House of Commons that something so un-English

4 The Secret World A history of intelligence (2018 Allen Lane) p13 5 Ibid p187

Page 4

could have been happening in this country This led to the abolition of the

Deciphering Branch and the Secret Office of the Post Office According to

Christopher Andrew this had the consequence that at the outbreak of the First

World War Great Britain did not have a code-breaking facility It quickly found

that it needed one6

13 In the meantime in 1909 there was established the Secret Service Bureau Of

course its existence was not announced or even acknowledged for many

decades At first it consisted of just two officers one responsible for domestic

matters and the other for foreign intelligence The original officers Sir Vernon

Kell and Sir Mansfield Cumming became respectively the first heads of the

Security Service (MI5) and the Secret Intelligence Service (MI6) It is in honour

of Cumming that to this day the Chief of MI6 is known as C ndash not M as in the

James Bond stories7

14 The third agency which now forms part of the UK intelligence community is

the Government Communications Headquarters (GCHQ) whose origins lie in

the Government Code and Cypher School created after the First World War

and which famously worked at Bletchley Park during the Second World War

although this was kept secret for many decades after the war

15 What is important for present purposes is that the security and intelligence

agencies are subject to the law of the land including the requirements of RIPA

and the Human Rights Act 1998 (ldquoHRArdquo) By putting complaints under those

Acts against one of the agencies into the IPT Parliament has sought to ensure

6 Ibid pp380-383 See also David Omand Securing the State (2010 Hurst amp Co) p277 7 Andrew op cit p483

Page 5

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

could have been happening in this country This led to the abolition of the

Deciphering Branch and the Secret Office of the Post Office According to

Christopher Andrew this had the consequence that at the outbreak of the First

World War Great Britain did not have a code-breaking facility It quickly found

that it needed one6

13 In the meantime in 1909 there was established the Secret Service Bureau Of

course its existence was not announced or even acknowledged for many

decades At first it consisted of just two officers one responsible for domestic

matters and the other for foreign intelligence The original officers Sir Vernon

Kell and Sir Mansfield Cumming became respectively the first heads of the

Security Service (MI5) and the Secret Intelligence Service (MI6) It is in honour

of Cumming that to this day the Chief of MI6 is known as C ndash not M as in the

James Bond stories7

14 The third agency which now forms part of the UK intelligence community is

the Government Communications Headquarters (GCHQ) whose origins lie in

the Government Code and Cypher School created after the First World War

and which famously worked at Bletchley Park during the Second World War

although this was kept secret for many decades after the war

15 What is important for present purposes is that the security and intelligence

agencies are subject to the law of the land including the requirements of RIPA

and the Human Rights Act 1998 (ldquoHRArdquo) By putting complaints under those

Acts against one of the agencies into the IPT Parliament has sought to ensure

6 Ibid pp380-383 See also David Omand Securing the State (2010 Hurst amp Co) p277 7 Andrew op cit p483

Page 5

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

both that such complaints can be made to an independent judicial body and that

the interests of national security are protected

The impact of the European Convention on Human Rights (ldquoECHRrdquo)

16 In 1979 in Malone v Metropolitan Police Commissioner an action concerning

interception of telephone calls pursuant to a warrant issued by the Home

Secretary failed in the High Court on the simple ground that unlike interception

of the post there was no interference with rights of property Sir Robert

Megarry V-C held that there was no right to privacy at common law [1979] Ch

344 The case of Malone v United Kingdom went to the European Court of

Human Rights where it succeeded in 1984 (1985) 7 EHRR 14 It was that

decision which led to the first statute regulating the interception of telephone

communications the Interception of Communications Act 1985 It was the

1985 Act which established a tribunal which was one of the three predecessors

of the IPT

17 The law in this area was first developed by the European Court of Human Rights

in the seminal case of Klass v Germany (1979-80) 2 EHRR 214 At para 42

the Court observed that ldquopowers of secret surveillance of citizens characterising

as they do the police state are tolerable under the Convention only insofar as

strictly necessary for safeguarding the democratic institutionsrdquo The Court

stressed that although states need to be able to respond to threats of terrorism

this does not mean that they ldquoenjoy an unlimited discretion to subject persons

within their jurisdiction to secret surveillancerdquo (para 49) In the same passage

the Court emphasised that surveillance poses the risk of undermining or even

Page 6

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

destroying democracy ldquoon the ground of defending itrdquo and so states ldquomay not in

the name of the struggle against espionage and terrorism adopt whatever

measures they deem appropriaterdquo

18 It is important not to lose sight of the underlying values which are protected by

the right to privacy As a recent academic article by Kirsty Hughes lsquoMass

Surveillance and the European Court of Human Rightsrsquo [2018] EHRLR 589

puts it at p 598 privacy is not only an individual right It also

ldquohas important societal benefits in particular it acts as a bulwark against totalitarianism it provides the space in which ideas (particularly controversial ideas) can be formed developed explored and expressed it fosters social relations and by protecting privacy we protect those that are typically subject to the most intrusive measures including ethnic and religious minorities and those of low socio-economic status Thus privacy contributes to a democratic intellectually vibrant harmonious and egalitarian societyrdquo

The origins and history of the IPT

19 The IPT was established under section 65(1) of RIPA That Act came into force

on 2 October 2000 It is no coincidence that that was the same date on which

the Human Rights Act came into full force This is because RIPA was intended

to ensure compliance with this countryrsquos obligations under the ECHR so far as

they relate to investigatory powers That Act therefore fits into the framework

of human rights law which was also created at that time

20 Importantly section 65(2) provides that the IPT is the only appropriate forum

in relation to proceedings against any of the intelligence services for any acts

alleged to be incompatible with the Convention rights In the case of the

Page 7

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

intelligence services therefore the jurisdiction of the IPT is not confined to

investigatory powers as such It covers all conduct of the intelligence agencies

which is alleged to breach section 7 of the Human Rights Act

21 Under section 67(2) and (3)(c) the IPT must apply the principles applicable by

a court on an application for judicial review However as has now become clear

since 2000 the principles applicable on judicial review include an allegation

that a public authority has acted unlawfully under section 6 of the Human Rights

Act Accordingly the IPT has the same jurisdiction to consider breaches of the

Convention rights as an ordinary court would do in a claim for judicial review

22 However the IPT does not have the power to make a declaration of

incompatibility in respect of primary legislation This is because it is not a

ldquocourtrdquo within the meaning of section 4 of the Human Rights Act

23 In his report of 2015 A Question of Trust David (now Lord) Anderson QC did

make a recommendation (at para 14106 and Recommendation 115) that

consideration should be given to conferring the power to make a declaration of

incompatibility on the IPT but this was not accepted when Parliament enacted

the Investigatory Powers Act 2016 (ldquothe 2016 Actrdquo) That said it should be

noted that David Anderson felt that a possible alternative reform would be to

introduce a right of appeal from the IPT which would then render it less

important that the IPT itself may not grant a declaration of incompatibility That

recommendation was accepted by Parliament in enacting section 242 of the

2016 Act

24 Under section 67(8) of RIPA it had been provided that there was to be no appeal

from a decision of the IPT ldquoexcept to such extent as the Secretary of State may

Page 8

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

by order otherwise providerdquo No such order was made at the time However

an order has now been made bringing into force the amendment made by

section 242 of the 2016 Act the new appeal route was introduced from 31

December 2018 Since the courts to which an appeal will lie including the

Court of Appeal of England and Wales do have the power to make a declaration

of incompatibility it should not be a practical problem that the IPT does not

have that power

25 The question whether the jurisdiction of the IPT in relation to conduct of the

security and intelligence agencies is an exclusive one came before the Supreme

Court in R (A) v Director of Establishments of the Security Service [2009]

UKSC 12 [2010] 2 AC 1 In that case the claimant was a former senior member

of the Security Service who had written a book about his work with the Service

and wished to publish it He was bound by strict statutory and contractual

obligations as well as duties of confidentiality and he was required to obtain the

consent of the Director of Establishments of the Security Service before he

could publish The Director refused to give his consent to publish parts of the

book The claimant commenced judicial review proceedings in the High Court

alleging that this was contrary to his right to freedom of expression in Article

10 of the ECHR The Supreme Court held that only the IPT had jurisdiction to

hear claims under section 7(1)(a) of the Human Rights Act and section 65(3)(a)

of RIPA did not limit that exclusive jurisdiction to proceedings arising out of

the exercise of one of the regulated investigatory powers in that Act itself The

judgment of the Court was given by Lord Brown JSC

Page 9

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

26 At para 14 of his judgment Lord Brown made the particular point that the

doctrine of ldquoneither confirm nor denyrdquo (ldquoNCNDrdquo) meant that it is important that

cases against the security and intelligence services should be brought not in the

ordinary courts but in a specialist tribunal that has the appropriate procedures to

handle such cases

27 Furthermore Lord Brown responded to the criticisms which were made of the

IPTrsquos procedures in particular the suggestion that they were ldquoflatly contrary to

the basic principles of open justicerdquo as follows at para 26 of his judgment

ldquohellip Claims against the intelligence services inevitably raise special problems and simply cannot be dealt with in the same way as other claims This indeed has long since been recognised both domestically and in Strasbourgrdquo

In that context Lord Brown went on to quote what Lord Bingham had said in R

v Shayler [2002] UKHL11 [2003] 1 AC 247 at para 26

ldquoThe need to preserve secrecy of information relating to intelligence and military operations in order to counter terrorism criminal activity hostile activity and subversion has been recognised by the European Commission and the Court in relation to complaints made under article 10 and other articles under the Convention hellip The thrust of these decisions and judgments has not been to discount or disparage the need for strict and enforceable rules but to insist on adequate safeguards to ensure that the restriction does not exceed what is necessary to achieve the end in question The acid test is whether in all the circumstances the interference with the individualrsquos Convention right prescribed by national law is greater than is required to meet the legitimate object which the state seeks to achieve helliprdquo

Page 10

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

Hearings in private or public

28 Until very recently the Tribunalrsquos Procedural Rules were those set out in the

rules enacted at its inception in 2000 The language of Rule 9(6) of those

original rules was clear and unqualified

ldquoThe Tribunalrsquos proceedings including any oral hearings shall be conducted in privaterdquo

29 That language was mandatory and on its face admitted of no exceptions

30 Nevertheless on 23 January 2003 the Tribunal gave its judgment in the matter

of applications number IPT0162 and IPT0177 which were rulings on

preliminary issues of law As the Tribunal observed at para 1 this was the first

occasion on which the Tribunal sat in public As later became apparent the

case was about a Mr Kennedy

31 The relevant provision in the Rules was challenged by Guardian Newspapers

Limited under the Human Rights Act relying upon the right to a fair and public

hearing in Article 6 as well as Articles 8 and 10 of the ECHR

32 The Tribunal comprised the then President (Mummery LJ) and Vice-President

(Burton J) and they gave a joint judgment

33 Rule 9(2) of the 2000 Rules provided that

ldquoThe Tribunal shall be under no duty to hold oral hearings but they may do so in accordance with this Rule (and not otherwise)rdquo

Page 11

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

34 The Tribunal reached the conclusion that the absence from the Rules of an

absolute right to either an inter partes oral hearing or failing that to a separate

oral hearing in every case was within the rule-making power in section 69(1) of

RIPA It was also compatible with Articles 6 8 and 10 of the ECHR see para

161 of its judgment

35 However when it came to the absolute requirement that hearings must be in

private in Rule 9(6) the Tribunal concluded that this was ultra vires the

enabling power in section 69 of RIPA Accordingly it did not bind the Tribunal

see para 173 of its judgment The Tribunal concluded that there was no

conceivable ground for requiring legal arguments on pure points of procedural

law to be held in private see para 171

36 The Tribunal also concluded that unless and until the Rules were amended by

the Secretary of State the Tribunal would have a discretionary power under

section 68(1) to hear legal arguments in public under Rule 9(3) This was

however subject to the important qualification that the Tribunal continued to

be subject to its duties in both RIPA and Rule 6(1) Rule 6 required the Tribunal

to carry out their functions in such a way as to secure that information is not

disclosed to an extent or in a manner that is contrary to the public interest or

prejudicial to national security or other interests specified in section 69(6)(b) of

RIPA There is a similar provision in the 2018 Rules Rule 7(1)

37 In its judgment in that early case the Tribunal also referred to the inherently

secret nature of much of its work

Page 12

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

38 As the Tribunal observed at para 52 of its judgment

ldquohellip In general the work of the security services must be carried out in secret in order to safeguard national security as an important policy objective National security may be compromised and harmed by the disclosure of the fact of surveillancerdquo

39 It was for that reason that the Tribunal concluded that the long standing policy

of successive Governments that they ldquoneither confirm nor denyrdquo whether

interception or surveillance has taken place was lawful and compatible with the

Human Rights Act That policy was set out for example in a White Paper in

1988 (Cm 408) at para 43

ldquohellip As a general policy Governments do not comment on assertions about security or intelligence true statements will generally go unconfirmed and false statements will normally go undeniedrdquo

40 This flowed from the general and fundamental considerations which were set

out in paras 59-60 of the Tribunalrsquos judgment At para 59 the Tribunal said

that

ldquohellip Cases potentially involving national security are at the cutting edge of Convention rights One of the main responsibilities of a democratically elected Government and its Ministers is to safeguard national security Intelligence gathering by the use of investigatory powers is an essential part of that function Otherwise it may not be possible to forecast and foil attempts to overthrow democratic institutions and laws (including Convention rights) by undemocratic means Interception of communications and surveillance are obvious methods of gathering intelligence Legitimate security and intelligence systems are allowed to use those methods on the basis that they must operate within the law in order to protect the very rights and freedoms guaranteed by the Conventionrdquo

Page 13

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

41 To counter-balance those legitimate considerations at para 60 the Tribunal

observed that

ldquoAs the exercise of investigatory powers potentially conflicts with individual rights of person property and privacy there must be a proper means of safeguarding individuals from and providing redress for unjustified infringements of their rights It is the function of the Tribunal to enquire into and determine the lawfulness of any use of investigatory powers and to provide redress where appropriate They must do so impartially operating as an independent body discharging judicial functions within the legislative framework of RIPA and the Rules as properly interpreted by the Tribunal in the light of the Convention requirements of fair trial and open justice helliprdquo

42 In similar vein in the Court of Appeal case of R (Privacy International) v

Investigatory Powers Tribunal [2017] EWCA Civ 1868 [2018] 1 WLR 2572

at para 38 Sales LJ said

ldquoIt is implicit hellip that Parliament considered that the IPT can be trusted to make sensible decisions about matters of this kind and on questions of law which arise and need to be decided for the purpose of making determinations on claims or complaints made to it There is nothing implausible about this The quality of the membership of the IPT in terms of judicial expertise and independence is very high as set out in Schedule 3 to RIPA hellip The IPT has been recognised to be lsquoa judicial body of like standing and authority to that of the High Courtrsquo see R (A) v Director of Establishments of the Security Service [2010] 2 AC 1 para 22 per Laws LJ and see para 57 per Dyson LJ and para 32 per Rix LJrdquo

43 Ever since its decision in Kennedy in 2003 the IPT has developed the practice

of holding a hearing in public if that is possible and is compatible with the public

interest In particular it will often hold a hearing in public to consider a question

Page 14

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

of law on the basis of assumed facts without (at that stage) deciding whether

those facts are true or not

Is the Tribunal part of the Tribunal system

44 The IPT is not part of the general tribunal system in this country which was

established by the Courts Tribunals and Enforcement Act 2007 That Act

implemented the proposals which had been made in 2001 by Sir Andrew

Leggatt in his review of Tribunals lsquoTribunals for Users One System One

Servicersquo Sir Andrew addressed the position of the IPT expressly at para 311

of his report where he said

ldquohellip This Tribunal is different from all others in that its concern is with security For this reason it must remain separate from the rest and ought not to have any relationship with other Tribunals It is therefore wholly unsuitable both for inclusion in the Tribunals System and for administration by the Tribunals Service So although the Chairman is a Lord Justice of Appeal and would be the senior judge in the Tribunals System he would not be in a position to take charge of it The Tribunalrsquos powers are primarily investigatory even though it does also have an adjudicative role Parliament has provided that there should be no appeal from the Tribunal except as provided by the Secretary of State [See section 67(8) of RIPA] Subject to Tribunal rules made by the Secretary of State the Tribunal is entitled to determine its own procedure [section 68(1)] We have accordingly come to the conclusion that this Tribunal should continue to stand alone helliprdquo

The role of Counsel to the Tribunal

45 Over the last 12 years or so the Tribunal has developed the practice of

instructing Counsel to the Tribunal not in every case but in certain cases It is

Page 15

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

important to note that Counsel to the Tribunal does not represent any of the

parties in a case but nor is he or she a ldquospecial advocaterdquo of the kind that is now

familiar in other contexts for example the Special Immigration Appeals

Commission The closest analogy is probably with counsel to a public inquiry

46 The original Tribunal Rules of 2000 made no mention of Counsel to the

Tribunal Nevertheless the Tribunal has at least since 2006 used its broad

power to regulate its own procedure under section 68(1) of RIPA to instruct

Counsel to the Tribunal The first occasion on which I am aware this happened

was in C v The Police and Secretary of State for the Home Department

(IPT0332) in which the Tribunal had to consider whether it had jurisdiction

to deal with police employment related surveillance cases

47 The Attorney General was asked to appoint an advocate to the Tribunal This

followed the practice and procedure which is familiar from the Attorney

Generalrsquos Memorandum of 19 December 2001 lsquoRequests for the Appointment

of an Advocate to the Courtrsquo a term which has replaced what used to be called

the amicus curiae

48 Since that time the practice has developed whereby the Tribunal simply instructs

Counsel to assist it without the need for appointment by the Attorney General

In LibertyPrivacy International v Secretary of State and others [2014] UK IP

Trib 13 77-H [2015] 1 Cr App R 24 Counsel to the Tribunal (Martin

Chamberlain QC) made written submissions which are recorded in the

Tribunalrsquos judgment in which he set out the role of Counsel to the Tribunal and

distinguished it from the role of a special advocate He said

Page 16

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

ldquohellip A special advocate is appointed (normally but not necessarily pursuant to statute) to represent the interests of a party at hearings from which that party is excluded A special advocate is required to be partisan He or she makes such submissions (if any) as he considers will advance the interests of the excluded party If the special advocate reaches the view that it would not advance the interests of the excluded party to make submissions at all (as has happened in a few cases) then the proper course is to decline to make submissions at all even though this leaves the Tribunal without assistance

hellip Counsel to the Tribunal performs a different function akin to that of amicus curiae His or her function is to assist the Tribunal in whatever way the Tribunal directs Sometimes (eg in relation to issues on which all parties are represented) the Tribunal will not specify from what perspective submissions are to be made In these circumstances counsel will make submissions according to his or her own analysis of the relevant legal or factual issues seeking to give particular emphasis to points not fully developed by the parties At other times (in particular where one or more interests are not represented) the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented)rdquo

49 That description of the role of Counsel to the Tribunal has clearly formed the

basis for the definition of such counsel which is now to be found expressly in

Rule 12 of the Tribunal Procedure Rules 2018 which have recently come into

force (on 31 December 2018) Rule 12(1) provides that

ldquoThe Tribunal may appoint Counsel to assist the Tribunal in their consideration of any complaint or section 7 proceedings where ndash

(a) the complainant is not legally represented

(b) the respondent objects to the disclosure of documents or information to the complainant

(c) the Tribunal intends to hold a hearing (in whole or in part) in the absence of a complainant or

(d) in any other circumstance in which the Tribunal considers it appropriate to do sordquo

Page 17

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

50 Rule 12(2) provides that the Tribunal may request Counsel to the Tribunal to

perform various specific functions which are listed including cross-

examination of a witness called by the respondent in the absence of the

complainant to ensure that all the relevant arguments on the facts and the law

are put before the Tribunal and generally to perform any other function that

would assist the Tribunal

51 Interestingly in the context of the new appeal procedure to which I will refer

later Counsel to the Tribunal also now has the role (made mandatory in the

Rules by Rule 12(3)) to seek to identify any arguable error of law in relation to

any decision or determination made by the Tribunal consequent upon a hearing

held (in whole or in part) in the absence of the complainant Rule 12(4) provides

that where Counsel to the Tribunal does identify an arguable error of law in

accordance with that provision Counsel must notify the Tribunal and when so

notified the Tribunal must subject to its general obligation to protect the public

interest (in Rule 7 of the 2018 Rules) disclose the arguable error of law to the

complainant

52 In an interesting article published by Martin Chamberlain in the University of

Toronto Law Journal (2018) 68 UTLJ 496 lsquoSpecial Advocates and Amici

Curiae in National Security Proceedings in the United Kingdomrsquo he again

emphasises at p505 the difference between the special advocate who must be

partisan and is not there to assist the Court and an amicus whose function is to

assist the Court or Tribunal It is interesting to observe that in that article

reflecting the views of some others for example JUSTICE he notes criticisms

Page 18

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

which have been made about the effectiveness of the special advocate system

in closed material proceedings Nevertheless there have also been suggestions

that in the IPT there should be the opportunity to have a special advocate whose

function would be to represent the complainant at least in addition to Counsel

to the Tribunal whose function (as I have mentioned) is primarily to assist the

Tribunal and is not to represent the complainant in a partisan way

53 The recent judgment of the Strasbourg Court in the Big Brother Watch case

noted it would appear with approval the role of Counsel to the Tribunal and

how it can help to ensure that the overall procedure is fair

The decision of the European Court of Human Rights in Big Brother Watch UK v

United Kingdom

54 The European Court of Human Rights considered the role of the IPT in secret

surveillance cases in Kennedy v United Kingdom decided in 2010 (2011) 52

EHRR 4 The Court held that proceedings before the IPT had been compliant

with Article 6 since any procedural restrictions were proportionate to the need

to keep secret sensitive and confidential information and did not impair the very

essence of the applicantrsquos right to a fair trial However the Court expressed

some concerns about whether proceedings before the IPT should be regarded as

an effective remedy so as to require the procedure to be exhausted under Article

35 of the ECHR before an application could be made to Strasbourg

Page 19

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

55 In its recent judgment in Big Brother Watch the Court returned to these issues8

It observed that the IPTrsquos ruling in Kennedy had come very early in its history

In fact it was the first time that the IPT had sat in public In the 15 years which

had passed since that time the Court considered that the experience of the IPT

and the very real impact its judgments have had on domestic law in practice

meant that the concerns expressed by the Court in Kennedy about its

effectiveness as a remedy for complaints about the general compliance of a

secret surveillance regime were no longer valid see para 253 of the judgment

In that context at para 255 the Court was influenced by the consideration that

the IPT was the only tribunal with jurisdiction to obtain and review ldquobelow the

waterlinerdquo material The Court said that an examination of the IPTrsquos extensive

caselaw since Kennedy demonstrates the important role that it can and does play

in analysing and elucidating the general operation of secret surveillance

regimes It noted that in the Liberty proceedings the IPT played a crucial role

first in identifying those aspects of a surveillance regime which could and

should be further elucidated and then recommending the disclosure of certain

ldquobelow the waterlinerdquo arrangements in order to achieve that goal

56 Furthermore at para 258 the Court noted that it would appear that where the

IPT has found a surveillance regime to be incompatible with the ECHR the

British Government has ensured that any defects are rectified and dealt with

57 Therefore the Court concluded at para 265 that as a general rule the IPT has

shown itself to be a remedy available in theory and practice which is capable

of offering redress to applicants complaining of both specific incidences of

8 Applications 5817013 6232214 and 2496015 judgment of 13 September 2018

Page 20

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

surveillance and the general compliance of surveillance regimes with the

ECHR As a consequence applicants to Strasbourg will normally be expected

to exhaust their domestic remedies by pursuing the opportunity to bring

proceedings in the IPT first Nevertheless in the special circumstances of the

cases before it and given what the Court had earlier said in Kennedy the Court

was prepared to hold that the particular applications before it were not

inadmissible under Article 35(1) of the ECHR

58 The Court went on to consider whether proceedings before the IPT comply with

Article 6 of the ECHR It noted that neither the Commission nor the Court has

found to date that Article 6(1) of the ECHR applies to proceedings relating to a

decision to place a person under surveillance It noted further that the IPT has

itself gone further than the Court in this regard In its joint ruling on preliminary

issues of law in the British-Irish Rights Watch case the IPT accepted that Article

6 applies to a personrsquos claims under section 65(2)(a) and to his complaints under

section 65(2)(b) of RIPA since each of them involves the determination of his

civil rights

59 The European Court itself found it unnecessary to reach any firm conclusion on

the applicability of Article 6 since it concluded that the complaint was

manifestly ill-founded in any event The complaint under Article 6 was

therefore held to be inadmissible

60 At para 510 of its judgment the Court reaffirmed what it had said in Kennedy

namely that the procedures of the IPT are compatible with Article 6 since any

restrictions on the applicantrsquos rights are both necessary and proportionate and

they do not impair the very essence of Article 6 In particular the Court

Page 21

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

observed the IPT had deployed its extensive powers to ensure the fairness of

the proceedings There was scrutiny of all the relevant material open and

closed Material was only withheld from the applicants where the IPT was

satisfied that there were appropriate public and national security reasons for

doing so Finally the IPT had appointed Counsel to the Tribunal to make

submissions on behalf of the applicants in the closed proceedings

61 Big Brother Watch was a decision of a chamber of the European Court of

Human Rights Earlier this month on 4 February 2019 the Court decided that

the case will be referred to the Grand Chamber We await the judgment of the

Grand Chamber with interest

The 2018 Procedure Rules

62 As I have mentioned for the first time since its creation in 2000 the IPTrsquos

Procedure Rules were recently revised and are now to be found in the

Investigatory Powers Tribunal Rules 2018 (SI 2018 No 1334) The old rule

which had required all hearings to be in private has been abolished Rule 10

now provides that the Tribunal is under no duty to hold a hearing but may do

so and that it may be held wholly or partly in private Rule 13 provides that

the Tribunal may receive evidence in any form and may receive evidence that

would not be admissible in a court of law Rule 11 provides for representation

at hearings As I have mentioned earlier Rule 12 expressly refers for the first

time in the Rules to Counsel to the Tribunal

63 Rule 7(1) retains the provision that

Page 22

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

ldquoThe Tribunal must carry out their functions in such a way as to secure that information is not disclosed to an extent or in a manner that is contrary to the public interest or prejudicial to national security the prevention or detection of serious crime the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence servicesrdquo

64 Under section 67(7) of RIPA the IPT has a broad power to grant such remedies

as it thinks fit They can include the quashing of a warrant and the award of

compensation

65 An important change has been made by Rule 15 of the 2018 Rules and makes

detailed provision for those circumstances in which a notification of a decision

by the IPT may contain reasons This duty remains subject to the general duty

in Rule 7(1) Where the IPT make a determination in favour of the complainant

they must provide the complainant and respondent with the determination

including any findings of fact see Rule 15(2) Where the Tribunal make a

determination which is not a determination in favour of the complainant the

Tribunal must if they consider it necessary in the interests of justice to do so

provide the complainant and respondent with ldquoa summary of the

determinationrdquo see Rule 15(3)

66 As I have mentioned the 2016 Act amends RIPA to create for the first time the

opportunity to appeal against decisions of the IPT The 2018 Rules give effect

to this in Rules 16-18 The appropriate appellate court will be in England and

Wales the Court of Appeal In Scotland it will be the Inner House of the Court

of Session At present it will not be possible for there to be an appeal to the

Court of Appeal of Northern Ireland but such appeals may go to another

Page 23

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

appropriate appellate court This is because there is currently no devolved

administration in Northern Ireland and its consent would be required to bring

this legislation into force in respect of Northern Ireland The grounds on which

an appeal may be made (with the leave either of the IPT or the relevant appellate

court) are that there is an error of law which raises an important point of

principle or practice or that there is some other compelling reason for granting

leave

67 The introduction of the possibility of an appeal does not have retrospective

effect It only applies to decisions taken since 31 December 2018 Accordingly

for those decisions which were made before that date it may still be important

to know whether the IPT is amenable to judicial review That question is

currently the subject of an appeal being considered by the Supreme Court

whose judgment is awaited Both the Divisional Court and the Court of Appeal

held that judicial review is not available because there is an effective ouster

clause in section 67(8) of RIPA see R (Privacy International) v Investigatory

Powers Tribunal [2017] EWHC 114 (Admin) [2017] 3 All ER 1127 [2017]

EWCA Civ 1868 [2018] 1 WLR 25729

68 Whatever the outcome of the case in the Supreme Court it is worth noting two

passages in the judgment of Sales LJ in the Court of Appeal because they set

out some general features of the nature of litigation before the IPT At para 7

Sales LJ said

ldquoThe context in which the IPT functions is one in which there is particular sensitivity in relation to the evidential material in issue

9 For differing academic views on this issue see Tom Hickman lsquoThe Investigatory Powers Tribunal a law unto itselfrsquo [2018] Public Law 584 and Robert Craig lsquoOuster Clauses separation of powers and the intention of Parliament from Anisminic to Privacy Internationalrsquo [2018] Public Law 569

Page 24

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

and the public interests which may be jeopardised if it is disclosed The intelligence services may have valuable sources of information about terrorist organisations organised crime and hostile activity by foreign powers which would be lost if those targets of investigation and monitoring became aware of them Human sources such as informers might be killed or threatened with serious harm if their identities (or even the possibility of their existence) were revealed Technological capacities to obtain information might be rendered useless if it were revealed they existed and new strategies to evade them or block them were developed Opportunities for exploitation of simple lapses of care on the part of targets which allow the intelligence services to obtain valuable information about them would be lost if the targets learned about them and tightened up their procedures The aspects of the public interest which would be jeopardised if these things occurred as referred to in rule 6(1)10 are of the most pressing importancerdquo

69 At para 10 Sales LJ said

ldquoThe legislative regime for the IPT deliberately creates a judicial body with powers to examine in private and without disclosure any relevant confidential evidence which cannot safely be revealed to the complainant which body is at the same time subject to an imperative overriding rule which forbids it from requiring disclosure of such material In this way the regime provides a guarantee that the important aspects of the public interest referred to above are safeguarded while at the same time enabling the IPT to examine the merits of claims against the intelligence services and others on the basis of the relevant evidence in a closed proceedingrdquo

Statutory regulation of the intelligence agencies

70 As we have seen the existence of the various intelligence agencies in this

country was not publicly acknowledged until the 1980s Times have changed

greatly since then In 1989 the Security Service Act placed MI5 on a statutory

10 Now rule 7(1) of the 2018 Rules

Page 25

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

footing Five years later the Intelligence Services Act 1994 placed both MI6

and GCHQ on a statutory footing The 1994 Act also established a

Parliamentary Committee the Intelligence and Security Committee to monitor

the work of all three UK intelligence and security agencies For the first time

members of both Houses of Parliament were to be involved in the scrutiny of

the expenditure administration and policy of the secret agencies11 The ISC is

currently chaired by the former Attorney General Dominic Grieve QC MP

71 Sir David Omand has held various offices including Permanent Secretary at the

Home Office and the Cabinet Office and also Director of GCHQ Since

retirement from public service he has been a visiting professor at Kingrsquos

College London and has contributed to bringing the field of intelligence studies

into the academic world in particular through his book Securing the State In

that book he quotes one British Ambassador from 1785 who wrote to the

Secretary of State in London about his involvement with secret agents

ldquoI abhor this dirty work but when one is employed to sweep chimneys one must black onersquos fingersrdquo12

72 Sir David Omand welcomes the fact that the intelligence agencies must operate

within the law in particular respecting human rights

ldquoHuman rights are a public good as is security The balance to be struck by wise government is not between security and rights as if to argue that by suspending human rights security could be assured The balance has to be within the framework of rights recognising that the fundamental right to life with the legitimate expectation of being protected by the state from threats to oneself and onersquos family is an important right that in some

11 David Omand op cit p264 12 Ibid p265

Page 26

circumstances must be given more weight than other rights such as the right to privacy of personal and family life This is a choice that society is able to make when there is a serious terrorist threat hellip In those circumstances checks and balances of good government should come into play to provide confidence that the balance is a genuine one and that red lines are not being crossed Remaining within the framework of rights is important however not least as a constant reminder that there are rights such as the right not to suffer torture which cannot be derogatedrdquo13

73 The framework of supervision also includes the office of the Investigatory

Powers Commissioner which was created by the Investigatory Powers Act

2016 The first holder of that office is Sir Adrian Fulford a serving judge of

the Court of Appeal Sir Adrian leads a team of 15 Judicial Commissioners and

a larger team of staff and has a Technical Advisory Panel14 The

Commissioners have various roles under the 2016 Act including the grant of

judicial warrants where the Act requires them in addition to warrants issued by

the Secretary of State for various investigatory practices The Commissionersrsquo

duties are however essentially administrative and their decisions are subject to

review by the IPT

74 It can therefore be seen that each of the three branches of the state Parliament

the executive and the judicial branch has a role to play in the legal regulation

and supervision of the intelligence agencies

75 As Sir David Omand puts it15

ldquoI have argued that intelligence gathering is now a recognised avowed activity of Government But there is a need to balance

13 Ibid p26714 For more detail see the first annual report by the IPC relating to 2017 (HC 1780)15 Ibid p285

Page 27

secret actions for the good of the city with upholding the reputation of being the city of the good There has to be a level of public acceptance of the activity and how it is conducted ndash and more importantly perhaps public acceptance that there is regulatory mechanism that can prevent excesses and abuses and processes for a rapid independent way of putting things right when they go wrongrdquo

76 It will be a matter for others to judge but I would hope that the IPT plays its part

in that process of reassuring the public and maintaining the rule of law in this

country

Please note that speeches published on this website reflect the individual judicial office-holders personal views unless otherwise stated If you have any queries please contact the Judicial Office Communications Team

Page 28